BEAU RIVAGE PTY LTD v BERNHARDT [1989] NSWCA 18

BEAU RIVAGE PTY LTD v BERNHARDT [1989] NSWCA 18

Leave to appeal is probably not necessary due to the appeal being as of right from the final judgment, but the summons for leave will be stood over in case the appeal court takes a contrary view; a stay is refused as no sufficient reasons have been advanced to disturb the valid orders below, and there is no substantial risk of irrecoverable loss to the appellant.

Parties
Appellant/claimant: Beau Rivage Pty Ltd; Respondent/opponent: Bernhardt
Jurisdiction
Australia
Judgment Date
01 May 1989
Procedural Posture
Appeal / Interlocutory/leave to Appeal and Application for Stay
Outcome
Summons for leave to appeal stood over to be heard with the appeal; motion for a stay dismissed.
Legal Topics
Leave to Appeal, Separate Question, Stay of Execution, Costs
Practice and Procedure Leave to Appeal Separate Question Stay of Execution Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Beau Rivage Pty Ltd

Appellant/claimant

Bernhardt

Respondent/opponent

Procedural Posture

Appeal / Interlocutory/leave to Appeal and Application for Stay

Legal Issues

  1. 1 Whether leave to appeal was necessary under Supreme Court Act 1970, s103 for a decision on a separate question constituting a final judgment
  2. 2 Whether a stay should be granted to stop the winding up of the appellant company

Ratio Decidendi

Leave to appeal is probably not necessary due to the appeal being as of right from the final judgment, but the summons for leave will be stood over in case the appeal court takes a contrary view; a stay is refused as no sufficient reasons have been advanced to disturb the valid orders below, and there is no substantial risk of irrecoverable loss to the appellant.

Court Disposition

Summons for leave to appeal stood over to be heard with the appeal; motion for a stay dismissed.

Orders

  • Stand over to the hearing of the appeal the summons for leave to appeal. Costs of the summons, costs in the appeal.
  • Motion for a stay dismissed. The costs of the motion to be opponents' costs in the appeal.